Published: Thursday, September 5, 2013 at 7:23 p.m.

Last Modified: Thursday, September 5, 2013 at 7:23 p.m.

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Judge James L. Gale ruled that the four other commissioners tainted their decision by considering personal experiences that were not properly entered as evidence.

Gale, however, upheld the way New Hanover County conducted the May 20 amotion process that removed Berger from the board, going as far as giving the county the power to try to remove Berger with another hearing.

In an order dated Sept. 5, Gale wrote, “... the court has not found that there was bias. It rather has held that the ultimate conclusions were infected by the insertion of personal experiences of the fact finder that were not presented in the form of evidence and subject to the hearing procedures attendant to the presentation of other evidence.”

Jonathan Martin, the Greenville-based attorney representing New Hanover County, said Gale's decision came as no surprise.

“Overall we're very pleased with it. Gale agreed with us on all the legal points,” Martin said. “Now it's just a matter of a remand to correct those errors he cited.”

When asked if the board would attempt to remove Berger again, Woody White, chairman of the board of commissioners, said, “Likely we will.”

Judge's reasoning

Gale's concerns were tied specifically to statements made by Commissioners Beth Dawson and Tom Wolfe during the amotion hearing based on their personal observations and interactions with unnamed staff.

At the hearing, Wolfe said Berger's “erratic behavior” and its effect on county staff worried him.

“... He can say he has not hurt anyone,” Wolfe said. “I looked at restraining orders. I see these. More importantly, I have been in the office. I have seen senior staff ladies cry in fear.”

Dawson referenced her personal experiences during commentary at the hearing.

“Most of these occurrences that have been filed in this amotion hearing and petition today occurred prior to my taking office,” Dawson said. “However, I have personally experienced many occurrences since December the 3rd.”

The judge said the commissioners could have been within their rights explaining how their experiences colored their judgment, but crossed a line when those

experiences became key to the decision to remove Berger.

Gale wrote, “... due process considerations clearly came into play when those personal experiences were themselves adopted as findings of fact upon which the Board's ultimate conclusion rested.”

Berger's appeal

Berger's original appeal alleged that he did not receive due process in the hearing and that his fellow commissioners violated the state constitution by removing him. Gale concluded that both of these claims were unfounded in his findings.

“The court affirmed that we upheld all of Mr. Berger's due process rights. (Gale) blessed the process,” Martin said. “It was just those two findings from the original hearing and we knew that may be a concern of his.”

Berger had also requested full compensation for attorney's fees and trial costs, as well as any “further relief as the court may deem just and equitable” in his original appeal. Gale did not address these concerns in his order.

At the amotion hearing, the commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.

The amotion hearing was approved by Berger's fellow commissioners after calls for his resignation went nowhere.

Board members said they feared for the county staff's safety, as well as their own, after Berger had a public run-in in March with Gov. Pat McCrory and his security team to hand out documents that threatened county staff members and accused both current and former officials of illegal activity.

Moving forward

In light of the original accusations against Berger, Gale authorized the board in the order to “take appropriate interim steps as necessary to provide for the conduct of the government's business or for safety and security.”

These measures in the past have included revoking Berger's access to the New Hanover County Government Center after business hours, as well as using police officers for security and holding mandatory security screenings before public meetings.

The commissioners will have to decide whether they want to hold another amotion hearing and “just correct those mistakes,” Martin said.

At least one commissioner will not back the other members of the board if they try to hold another amotion hearing.

“We wasted a lot of taxpayers' dollars and a lot of staff time going down the road to nowhere,” Barfield said. “... Going through this process again and wasting more taxpayers' money, I can't support that.”

Barfield added he prefers the local legislative delegation in Raleigh initiate a recall election with a bill instead of holding another hearing. Such a bill would need support from the local delegation, which has been cautious about the measure in the past.

<p>An N.C. Superior Court judge on Thursday reinstated <a href="http://www.starnewsonline.com/section/topic9976"><b>Brian Berger</b></a> to the New Hanover County Board of Commissioners.</p><p>Judge James L. Gale ruled that the four other commissioners tainted their decision by considering personal experiences that were not properly entered as evidence.</p><p>Gale, however, upheld the way New Hanover County conducted the May 20 amotion process that removed Berger from the board, going as far as giving the county the power to try to remove Berger with another hearing.</p><p>In an order dated Sept. 5, Gale wrote, “... the court has not found that there was bias. It rather has held that the ultimate conclusions were infected by the insertion of personal experiences of the fact finder that were not presented in the form of evidence and subject to the hearing procedures attendant to the presentation of other evidence.”</p><p>Jonathan Martin, the Greenville-based attorney representing New Hanover County, said Gale's decision came as no surprise.</p><p>“Overall we're very pleased with it. Gale agreed with us on all the legal points,” Martin said. “Now it's just a matter of a remand to correct those errors he cited.”</p><p>When asked if the board would attempt to remove Berger again, Woody White, chairman of the board of commissioners, said, “Likely we will.”</p><h3>Judge's reasoning</h3>
<p>Gale's concerns were tied specifically to statements made by Commissioners Beth Dawson and Tom Wolfe during the amotion hearing based on their personal observations and interactions with unnamed staff. </p><p>At the hearing, Wolfe said Berger's “erratic behavior” and its effect on county staff worried him.</p><p>“... He can say he has not hurt anyone,” Wolfe said. “I looked at restraining orders. I see these. More importantly, I have been in the office. I have seen senior staff ladies cry in fear.”</p><p>Dawson referenced her personal experiences during commentary at the hearing.</p><p>“Most of these occurrences that have been filed in this amotion hearing and petition today occurred prior to my taking office,” Dawson said. “However, I have personally experienced many occurrences since December the 3rd.”</p><p>The judge said the commissioners could have been within their rights explaining how their experiences colored their judgment, but crossed a line when those </p><p>experiences became key to the decision to remove Berger.</p><p>Gale wrote, “... due process considerations clearly came into play when those personal experiences were themselves adopted as findings of fact upon which the Board's ultimate conclusion rested.”</p><h3>Berger's appeal</h3>
<p>Berger's original appeal alleged that he did not receive due process in the hearing and that his fellow commissioners violated the state constitution by removing him. Gale concluded that both of these claims were unfounded in his findings.</p><p>“The court affirmed that we upheld all of Mr. Berger's due process rights. (Gale) blessed the process,” Martin said. “It was just those two findings from the original hearing and we knew that may be a concern of his.”</p><p>Berger had also requested full compensation for attorney's fees and trial costs, as well as any “further relief as the court may deem just and equitable” in his original appeal. Gale did not address these concerns in his order.</p><p>At the amotion hearing, the commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.</p><p>The amotion hearing was approved by Berger's fellow commissioners after calls for his resignation went nowhere.</p><p>Board members said they feared for the county staff's safety, as well as their own, after Berger had a public run-in in March with Gov. Pat McCrory and his security team to hand out documents that threatened county staff members and accused both current and former officials of illegal activity.</p><h3>Moving forward</h3>
<p>In light of the original accusations against Berger, Gale authorized the board in the order to “take appropriate interim steps as necessary to provide for the conduct of the government's business or for safety and security.”</p><p>These measures in the past have included revoking Berger's access to the New Hanover County Government Center after business hours, as well as using police officers for security and holding mandatory security screenings before public meetings.</p><p>The commissioners will have to decide whether they want to hold another amotion hearing and “just correct those mistakes,” Martin said.</p><p>At least one commissioner will not back the other members of the board if they try to hold another amotion hearing.</p><p>“We wasted a lot of taxpayers' dollars and a lot of staff time going down the road to nowhere,” Barfield said. “... Going through this process again and wasting more taxpayers' money, I can't support that.”</p><p>Barfield added he prefers the local legislative delegation in Raleigh initiate a recall election with a bill instead of holding another hearing. Such a bill would need support from the local delegation, which has been cautious about the measure in the past.</p><p>Multiple calls to Berger, Dawson and Wolfe were not returned.</p><p>Ashley Withers: 343-2223</p><p>On <a href="http://www.starnewsonline.com/section/news41"><b>Twitter</b></a>: @ashleywithers</p>